Immunity

Immunity from prosecution comes up a lot in criminal. There are two primary forms of immunity. The first is granted to those who might assist in the investigation or prosecution of a criminal matter in which they may have particularized information. So, in exchange for their witness testimony at trial, the government may decline from prosecuting them (or prosecute them for a lesser crime). Another form of immunity is applied to individuals by virtue of the office they hold – for example, diplomatic immunity. In other cases, immunity comes up regarding civil lawsuits. Judges are not typically allowed to be sued by a disgruntled litigant, just because they believe they were incorrect in their final rendition of judgment. To allow otherwise would open the floodgates of litigation.

Recently, two situations of immunity have appeared in the news cycle. First up is the recent incident in Florida where an individual has used the ‘Stand Your Ground’ law to defend his actions. The incident occurred when Michael Drejka got into an altercation with Markeis McGlockton over a parking space outside a convenience store. McGlockton’s girlfriend had parked in a handicapped space, and Drejka confronter her when McGlockton was inside the convenience store. When McGlockton came outside, he approached Drejka and shoved him on the ground. At this point, Drejka pulled out a handgun, and McGlockton backed away – but Drejka fatally shot him in the chest. The officers on the scene decided not to arrest Drejka, based on the ‘stand your ground’ law. He told officers in the initial report that McGlockton had tackled him and that he was in fear for his life, so he was justified in using deadly force against him. But security tv cameras show that Drejka was over 10 feet away from McGlockton when he was shot. The stand your ground law grants immunity to the person who can show they were acting in self-defense, and puts the burden of proof on the state. Drejka was eventually charged with manslaughter after a 9-day review by the State Attorney. Perhaps the most famous case involving the stand your ground law involved George Zimmerman and Trayvon Martin.

The other news venue where immunity has played a role is in the Trump/Mueller investigation. In one case, Paul Manafort, Trump’s former campaign manager, has been charged with multiple crimes, including money launder. Many of the witnesses have testified and bolstered these claims, often in exchange for immunity. His accountant, Cindy LaPorta, testified under a grant of immunity when she revealed that Rick Gates, Manafort’s assistant, directed her to change certain loan amounts that Manafort could pay for his 2014 taxes. Four other individuals have been given immunity: Donna Duggan, James Brennan, Conor O’Brien, and Dennis Raico – all of whom are connected to various financial institutions. This kind of immunity is ‘use immunity’, which protects witnesses against a government attempt to use their testimony in any potential prosecution against the witness after. It usually prevents the witness from pleading the Fifth during their testimony. This is different from transaction immunity, which protects witnesses from being prosecuted for the underlying offense that they may be called to testify about. This kind of immunity is often seen with co-defendants to the same crime.

Immunity can appear in all manner of criminal prosecutions. State prosecutors and defense attorneys alike should be aware of the types of immunity available to better achieve their goals.